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The Supreme Court Abortion Leak vs. the Rule of Law

Ben Bayer, Onkar Ghate

Presented at: New Ideal Live

Date: May 04, 2022

In a stunning breach of judicial norms, someone at the Supreme Court leaked an opinion by Justice Alito that appears to be a draft of a majority decision in favor of overturning Roe v Wade. The leak itself has drawn condemnation from all quarters, but how well understood are the stakes? If the leak threatens the Court's authority to interpret the law in the face of public pressure, how should we consider the threat to the rule of law implied by the content of the draft decision itself? Join Onkar Ghate and Ben Bayer to examine the draft decision itself and the significance of its release.

In this episode of New Ideal Live, Onkar Ghate and Ben Bayer discuss the leak of an opinion by Justice Samuel Alito that appears to be the draft of a majority Supreme Court decision in favor of overturning Roe v. Wade, and they examine both the draft decision itself and the significance of its release.

Among the topics covered:

  • An overview of the case and the leak of the draft opinion;
  • The harmful consequences of the leak on the Court’s ability to rationally deliberate;
  • Why it’s important to comment on the leaked draft despite its harmful effects;
  • The essence of Alito’s argument, and how it compares to typical arguments that the Constitution does not protect abortion rights;
  • Why Alito’s argument is wrong to imply that the Constitution’s enumeration of rights offers no guidance to determining unenumerated rights;
  • Why Alito is wrong to treat tradition as a source of guidance in legal interpretation;
  • How Alito’s dismissal of Supreme Court precedents about personal liberty reveals an  unstated religious viewpoint;
  • How Oliver Wendell Holmes’s Lochner dissent, which argued that the Constitution does not protect a wide-ranging right to liberty, influenced both Roe and Alito’s draft;
  • Why Alito’s argument that most liberties should be subject to the decisions of voters implies opposition to the rule of law;
  • Today’s un-American conception of the rule of law as pertaining only to process, not to a substantive protection of individual rights;
  • Why government has the burden of proof to show that its actions are delegated powers, and citizens should not have to show that it violates their rights;
  • Why the idea that the Constitution constrains only the federal government, not the states, is un-American;
  • Why some rights are enumerated in the Constitution;
  • The consequences of leaving the issue of abortion up to Congress and state legislatures.

Mentioned in this podcast are the Ayn Rand Lexicon entry  “Abortion,” the New Ideal Live episode “Roe v. Wade on the Brink,” Bayer’s article “Abortion Should Be Legal Until Birth,” and Tom Bowden’s article “Justice Holmes and the Empty Constitution.”

The podcast was recorded on May 4, 2022.

0:00:00 Introduction
0:01:21 The Dobbs case and the leak
0:07:56 The leak's harmful effects
0:13:36 Why address the leaked draft
0:16:59 Alito's argument
0:21:27 Enumeration of rights
0:28:14 Tradition's role
0:32:03 Unstated religious view
0:39:42 Holmes's Lochner dissent
0:47:47 Democracy vs. rule of law
0:52:05 Due process and substantive rights
0:58:38 Delegated powers
1:03:09 "States' rights" un-American
1:05:33 Why some rights enumerated
1:08:42 Leaving abortion to the states

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